The employer submitted a petition for commission review alleging error in the
administrative law judge's FINDINGS and INTERLOCUTORY ORDER dated July 15, 1994. Briefs
were submitted by both parties. At issue is the nature and extent of disability liability
for medical expenses.

The commission has carefully reviewed the entire record in this matter, and after
consultation with the administrative law judge regarding the credibility and demeanor of
the witnesses, hereby modifies the FINDINGS and INTERLOCUTORY ORDER of the administrative
law judge. The commission makes the following:

MODIFIED FINDINGS OF FACT

1. Delete the 4th paragraph on page 2 of the administrative law judge's FINDINGS OF
FACT and substitute therefor:

"Considering all the factors listed in sec. Ind 80.34 it was established that the
applicant has incurred a seven percent loss of earning capacity."

2. Also delete the 1st paragraph on page 3 of the administrative law judge's FINDINGS
OF FACT and substitute therefor:

"As a result of her conceded injury the applicant is entitled to permanent partial
disability for seventy weeks at a rate of $144 per week for a total of $10,080 all of
which has accrued. The applicant's attorney shall be paid attorney fees in the amount of
$2,016.

3. Delete the administrative law judge's INTERLOCUTORY ORDER and substitute therefor
all except the first sentence of the commission's INTERLOCUTORY ORDER set forth below.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The FINDINGS and INTERLOCUTORY ORDER of the administrative law judge are modified in
accordance with the above findings. Within 30 days from date employer's insurer shall pay
to applicant the sum of $8,064 and to applicant's attorney the sum of $2,016 as attorneys
fees. The employer's insurer shall pay the sum of $50 to Rice Clinic Medical Center.
Jurisdiction is retained to issue such orders as may be just and proper.

Dated and mailed at Madison, WI, January 26, 1995 ND § 5.20

Pamela I. Anderson, Chairman

Richard T. Kreul, Commissioner

James R. Meier, Commissioner

MEMORANDUM OPINION

The employer contended in its petition for commission review the administrative law
judge erred in determining that the applicant suffered 45 percent loss of earning capacity
as a result of her work injury. The applicant was injured when she slipped and fell and
landed on her buttocks and injured her lower back on October 30, 1992. The applicant
underwent conservative therapy and treatment and a CT scan of October 1992, revealed a
bulging disc at the L5-S1 level. The applicant's symptoms continued and she began treating
with Dr. Wirtz, beginning in March 1993.

Dr. Wirtz noted that the applicant's neurologic examination at the time of her injury,
as well as in March 1993, was normal. Dr. Wirtz stated that the applicant complained of
lower back pain mostly on the left, and he diagnosed the applicant with mechanical low
back pain. Dr. Wirtz did not recommend that the applicant undergo surgery and there was no
evidence that she suffered disc herniation or structural breakage. Dr. Wirtz opined that
the applicant could perform only sedentary and light work, and she could sit no longer
than one hour and stand for one hour at a time, and that she could not bend or crawl, and
could only occasionally squat, climb and work overhead. However, Dr. Wirtz did not perform
any lifting test to verify the applicant's lifting restrictions. Dr. Wirtz indicated in
his testimony that his lifting restriction of less than 10 pounds was somewhat arbitrary
and to be used only to avoid pain.

The applicant was also examined by Dr. Warner on behalf of the employer. Dr. Warner
stated in a report dated June 15, 1993, that a review of the applicant's MRI and medical
records indicated that the applicant suffered a low back sprain and bulging disc at the
L5-S1 level. Dr. Warner also noted that the applicant had exhibited considerable pain
behavior and inconsistency, and that at times her back seemed to cause her considerable
difficulty and yet in different positions she had very little difficulty. Dr. Warner
assessed the applicant with 2 percent permanent disability based on her work injury.

The applicant's vocational expert, Ms. Shane, opined that given the restrictions from
Dr. Wirtz, that when compared to the applicant's wage information that positions she could
perform was to compared to her former job as a scrub nurse, that she would incur a wage
loss of 45-50 percent. The employer's vocational expert Mr. Zanskas, opined that based
upon Dr. Wirtz' restrictions, the applicant suffered a loss of earning capacity of 25-35
percent. He also opined that based upon Dr. Warner's report the applicant suffered no loss
of earning capacity.

The commission consulted with the administrative law judge concerning his assessment of
the witnesses demeanor and testimony. The administrative law judge indicated that he
credited the applicant's testimony concerning her ongoing pain and restrictions. Further,
the administrative law judge indicated that he credited the testimony from Dr. Wirtz
concerning the applicant's physical restrictions, but that he also credited Mr. Zanskas'
assessment of 25 percent loss of earning capacity.

However, the commission finds Dr. Warner's assessment of 2 percent functional permanent
disability to be most credible. The applicant's objective tests did not reveal any disc
herniation or breakage. The applicant's physical restrictions are based only on her
subjective complaints of pain. Both Dr. Warner and Dr. Wirtz found a bulging disc at the
L5-S1 level and diagnosed mechanical low back pain. Dr. Wirtz admitted that he included a
vocational component in his assessment of functional disability. Also, Dr. Wirtz admitted
that the applicant's neurologic examination was normal. The applicant has not been
recommended to undergo surgery and the evidence indicates that she has been able to work
in various jobs despite the fact she has continuing complaints of back pain. Ms. Shane
admitted that the applicant could work as an activity aide, bartender, hostess or medical
assistant. The applicant had previously worked as a scrub nurse for several years but
there is evidence that she had stopped working in that field because she felt burned out,
and not due to her work injury. Based on the applicant's age, work experience and
education and the other factors listed in sec Ind. 80.34 of the Wis. Admin. Code, and
based on Dr. Warner's assessment of 2 percent permanent partial disability, the commission
finds that the applicant suffered 7 percent loss of earning capacity as a result of her
work injury.